Is the End Near for Affirmative Action?

The Fifth Circuit has just handed down its opinion in Fisher v. University of Texas upholding UT-Austin’s race-conscious admissions for those not among the auto-admitted top ten percent of their high school classes.  I flagged this case some months ago and have been eagerly awaiting its result.  In August, I devoted an entire post to the prospect of the Roberts Court granting certiorari to Fisher‘s inevitable petition and, in turn, reversing precedent to rule higher education affirmative action unconstitutional.

Senior Judge Patrick Higginbotham‘s opinion depends entirely on the Supreme Court’s 2003 decision, Grutter v. Bollinger, in which Justice Sandra Day O’Connor, writing for herself and the Court’s liberal bloc, reaffirmed the constitutionality of affirmative action in higher education.  While Justice Samuel Alito has not faced a higher-ed affirmative action case since arriving on the Court, his vote in 2007’s Parents Involved and his generally conservative voting pattern overall strongly suggest that he will not vote in accord with his predecessor’s opinion in Grutter.

The Fisher decision notably includes Judge Emilio M. Garza‘s 30 page anti-Grutter broadside, more politely labeled as a “special concurrence.”  Judge Garza, a Reagan appointee to the district court, a George H.W. Bush appointee to the Fifth Circuit, and a runner-up to Justice Clarence Thomas for Justice Thurgood Marshall’s seat on the Supreme Court in 1991, apparently wrote his special concurrence specifically for the consumption of the current Court’s conservative bloc–including Justice Anthony Kennedy, who dissented in Grutter and concurred in Parents Involved.

Garza’s concurrence in Fisher begins:

Whenever a serious piece of judicial writing strays from fundamental principles of constitutional law, there is usually a portion of such writing where those principles are articulated, but not followed. So it goes in Grutter, where a majority of the Court acknowledged strict scrutiny as the appropriate level of review for race-based preferences in university admissions, but applied a level of scrutiny markedly less demanding. To be specific, race now matters in university admissions, where, if strict judicial scrutiny were properly applied, it should not.

Today, we follow Grutter’s lead in finding that the University of Texas’s race-conscious admissions program satisfies the Court’s unique application ofstrict scrutiny in the university admissions context. I concur in the majority opinion, because, despite my belief that Grutter represents a digression in the course of constitutional law, today’s opinion is a faithful, if unfortunate, application of that misstep. The Supreme Court has chosen this erroneous path and only the Court can rectify the error. In the meantime, I write separately to underscore this detour from constitutional first principles.

Justice Kennedy spoke to this very “misstep” in his Grutter dissent, arguing not that affirmative action is unconstitutional, but rather that the majority unlawfully loosened its own strict scrutiny standard for such race-conscious admissions programs.  Kennedy’s pivotal position is not lost on Garza, as evidenced in his explicit invocation of the justice:

After finding that racial diversity at the University of Michigan Law School (“Law School”) was a compelling governmental interest, the Court redefined the meaning of narrow tailoring. See Grutter, 539 U.S. at 387 (Kennedy, J., dissenting) (“The Court, however, does not apply strict scrutiny. By trying to say otherwise, it undermines both the test and its own controlling precedents.”); see generally Ian Ayres & Sydney Foster, Don’t Tell, Don’t Ask: Narrow Tailoring After Grutter and Gratz, 85 TEX. L. REV. 517 (2007). The Court replaced narrow tailoring’s conventional “least restrictive means” requirement with a regime that encourages opacity and is incapable of meaningful judicial review under any level of scrutiny.

Ultimately, Garza cites Kennedy five times despite Garza’s own more hardline opposition to affirmative action, which he spells out in conclusion:

My disagreement with Grutter is more fundamental, however. Grutter’s failing, in my view, is not only that it approved an affirmative action plan incapable of strict scrutiny, but more importantly, that it approved the use of race in university admissions as a compelling state interest at all. […]

Yesterday’s racial discrimination was based on racial preference; today’s racial preference results in racial discrimination. Changing the color of the group discriminated against simply inverts, but does address, the fundamental problem: the Constitution prohibits all forms of government-sponsored racial discrimination. Grutter puts the Supreme Court’s imprimatur on such ruinous behavior and ensures that race will continue to be a divisive facet of American life for at least the next two generations. Like the plaintiffs and countless other college applicants denied admission based, in part, on government-sponsored racial discrimination, I await the Court’s return to constitutional first principles.

In so writing, Garza, who could have been the Court’s first Hispanic justice, makes sure to appeal not only to Justice Kennedy, but also to Justices Scalia and Thomas, the latter of whom has been a vocal opponent of affirmative action on and off the bench.  Neither Chief Justice Roberts nor Justice Alito have yet voiced their opinions on higher education affirmative action from their perches on the Supreme Court, but Roberts’s concluding aphorism in Parents Involved, which was joined by Justices Scalia, Thomas, and Alito, is instructive towards those seeking to divine the two George W. Bush appointees’ votes in Fisher.

“The way to stop discrimination on the basis of race is to stop discriminating on the basis of race,” Chief Justice Roberts famously wrote in Parents Involved.  Justice Kennedy agreed to disagree with the statement’s simple certitude, filing his own concurrence in the judgment that put forward his more accepting–but still quite restrictive–take on race-conscious government measures.  As such, Judge Garza was smart in addressing the Court’s entire conservative bloc in his special concurrence: either way, Grutter‘s days are numbered.  Just as Citizens United reversed McConnell v. FEC and Gonzales v. Carhart all but wiped out Stenberg v. Carhart, Fisher will find the Roberts Court once again doing away with an O’Connor-backed, 5-4 precedent by the new 5-4 reality.

I’ve said it before and I’ll say it again: next term is going to be a doozy.

This piece is cross-posted at The CockleBur.

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Greenhouse & The Roosevelt Rubicon, Redux

Linda Greenhouse has a compelling Opinionator column today at the New York Times that concludes that Chief Justice Roberts, not Justice Kennedy, may be the key vote in the individual mandate cases that will ultimately come before the Court.  Thus continues the Great 2010 F1@1F-Greenhouse Mind-Meld.

Reminding readers that Roberts’s mentor and predecessor, Chief Justice Rehnquist, aborted his own “federalism revolution” in 2003’s Nevada Department of Human Resources v. Hibbs, Greenhouse goes on to examine Roberts’s own role as the fifth vote to last year’s broad, Breyer-written federalism case, United States v. Comstock.  She concludes:

In his decision this week, Judge Hudson also mentioned the Comstock case, endeavoring to show why it didn’t save the statute. In my view, his effort to wish the case away was unpersuasive, but my view is not the one that matters. The view that ultimately may count the most is that of Chief Justice Roberts. As everyone knows, he was once William Rehnquist’s law clerk. So my question, as the health care debate continues on its path to the Supreme Court, is this: When John Roberts thinks about his former boss and mentor, which Rehnquist does he see? The one who started the federalism revolution, or the one who ended it?

Without my gunning for her attention (a/k/a “the Greenhouse Effect) and surely without her looking to F1@1F, Greenhouse and I have been on the same wavelength, absent reference to Rehnquist’s ghost, for nearly a year now.

F1@1F in January:

For any challenge to the health care legislation, at least one of the current Court’s conservatives–my guess is Roberts himself–will recognize that the political moment, at least in terms of an individual mandate for all Americans to have health insurance, is not ripe for restoring the reign of the Constitution in Exile.

Greenhouse in March:

John Roberts is an acutely image-conscious chief justice, as watchful and protective of the Supreme Court’s image as he is of his own. I find it almost impossible to believe that this careful student of history would place his court in the same position as the court that has been rewarded with history’s negative judgment for thwarting the early New Deal.

F1@1F in May, post-Comstock:

Of course, Roberts may have simply agreed from the start with Breyer and the liberals.  But even if such a thought was ideologically plausible prior to the announcement of Comstock, it just doesn’t make strategic sense for the Chief to entrust the opinion to Breyer.  However, if the Chief was in the majority and did assign the opinion to Breyer, it could have been to send a message to those hoping the Court will strike down Obamacare: abandon all hope ye who enter here, for the Roberts Court will not cross the Roosevelt Rubicon.

After Schwarzenegger v. EMA, I’m no longer as confident in Comstock as dispositive of the Chief’s vote on the individual mandate.  Before oral argument in EMA, no one could see any daylight between Roberts’s robust First Amendment opinion for the Court in Stevens and the similar violence-as-obscenity facts in EMA, but Roberts made clear from the bench that he believed that Stevens, however sweeping in its language striking down Congress’s ban on depictions of animal cruelty, did not touch the constitutionality of California’s ban on the sale of violent video games to minors.  Accordingly, in the health care cases, Roberts already has a blueprint in Judge Hudson’s decision for distinguishing Comstock away, however apposite Comstock might seem.

Still, history and politics will be sitting like massive gorillas in the room–indeed, every room: chambers, conference, court–when this case finally reaches the Court.  Not only would a decision against the mandate mark the Court’s deepest incursion into pre-1937 territory since, well, 1936, but it would also come during a Presidential Election year.  A conservative majority ruling against the liberal incumbent’s signature first-term legislation will be an inter-branch collision not seen since, you guessed it, 1936.  The decision itself will fast become campaign fodder for Obama to cast the Court as unprincipled political actors hell-bent in their conservative activism to collide with the elected branches and stand athwart the forward march of history screaming “NO!”

How unseemly it all could be.

And let’s not forget that unlike Citizens United, which sat alone on last term’s docket among a bunch of less-than-massive cases, the health care cases may very well reside on the same docket as the Prop 8 case, the University of Texas affirmative action case, the Arizona immigration case, and maybe a Nebraska abortion case.  The Court will have to pick its hot button to push in a deeply political moment, and I can’t see the Chief selecting the one that reduces to rubble a cornerstone of modern American jurisprudence.

The Future is Here

This morning C-SPAN released a few choice clips from its interview with Justice Kagan in anticipation of its airing the full interview this coming Sunday night.  In the above clip, Justice Kagan speaks about her respect for Chief Justice Roberts.

Meanwhile, if you go over to the Supreme Court’s page for this term’s opinions related to orders of the Court, you’ll see this:

Either Justice Alito or Justice Sotomayor has been a part, if not an author, in every one of those opinions, all but one dissents from denials of certiorari.

This term, I’ve been thinking quite a lot about these two pairings–Chief Justice Roberts and Justice Kagan, Justice Alito and Justice Sotomayor.  At oral argument as well as in the few opinions of this term, it has become clear that they are developing doppelgänger demeanors.

Roberts and Kagan conduct themselves like suave assassins, devastating advocates without compromising their gentility.  They apprenticed at the feet of the Court’s then arch-partisans–he, Justice Rehnquist; she, Justice Marshall–and now possess those two men’s collegiality without their more prickly public personas.  Indeed, Roberts and Kagan, both bred for leadership at Harvard Law, are public creatures: the Chief and the Dean.  Firm but polished, one can see these two in twenty years as gracefully grayed totems of conservative and liberal jurisprudence.

Alito and Sotomayor, on the other hand, are their sides’ enforcers.  Appearing rough around the edges, they send clear, aggressive messages, often on behalf of their comrades, but sometimes alone on principle.  In their self assurance that comes from years of practice in the lower courts, they seem not to have much interest in institutional niceties when the law is disobeyed or justice is disregarded.  Both Princeton and Yale Law grads, they took active roles in their institutions’ internal battles over coeducation and affirmative action.  Rather than skirt controversy and stay quiet to maintain squeaky clean public records, they took stands over the identity politics of their days that have continued into 21st century America.  It is no wonder, then, that Alito and Sotomayor have had no hesitance going on record to dissent from denials of certiorari, even if such opinions were once seen as rare peeks behind the curtain saved only for a justice’s irrepressible outrage.

The massive cases about health care, gay marriage, affirmative action, and abortion bubbling up to the Supreme Court in the next few years will mark the final overlap between the old Court and the new: the septuagenarians–Ginsburg, Scalia, Kennedy, and Breyer–will have as much time remaining in their twilight on the bench as Roberts, Alito, Sotomayor, and Kagan will have spent so far on it.   For those cases, we will rightly focus on Justice Kennedy for the bottom-line prognostication and ultimate pronouncements.  But we should absolutely save some of our peripheral vision for how our four youngest justices conduct themselves at argument and in print, as those cases will be the crucibles upon which their careers will be characterized for the next generation.

This piece is cross-posted at The CockleBur.

Perry Brief Bonanza

On December 6, the Ninth Circuit will begin hearing the appeal of District Judge Vaughn Walker’s decision in Perry v. Schwarzenegger, which struck down California’s gay marriage ban as a violation of Equal Protection and Due Process under the Fourteenth Amendment of the U.S. Constitution.  Supporters of the appellant, ProtectMarriage.com, filed their amicus briefs last month.  The Alliance Defense Fund, appellant’s co-counsel, has compiled links to those briefs–26 in all–here.

Yesterday, the opposition amicus briefs–that is, those arguing to uphold Walker’s decision–flooded in.  Prop8TrialTracker.com has compiled 24 of the briefs here.

I would like to commend, in particular, my friend Justin Ford of O’Melveny & Myers, for a job well-done co-authoring the National LGBT Association brief.  I’ve known Justin since our days at Duke together and regret that our tenures at Georgetown Law did not overlap.  If gay marriage–and with it, full and equal rights for gays–is the final frontier for American civil rights, then the Nat’l LGBT Ass’n brief squarely addresses the corresponding jurisprudential final frontier: whether laws classifying on the basis of sexual orientation should be subject to heightened scrutiny.

In arguing that heightened scrutiny should apply, the brief surveys the history of federal and state discrimination against gay Americans, including this lovely 1966 letter by then-Chairman of the U.S. Civil Service Commission, explaining the continued ban on gays in the federal government’s employ:

Pertinent considerations here are the revulsion of other employees byhomosexual conduct and the consequent disruption of service efficiency, the apprehension caused other employees of homosexual advances, solicitations or assaults, the unavoidable subjection of thesexual deviate to erotic stimulation through on-the-job use of thecommon toilet, shower and living facilities, the offense to members ofthe public who are required to deal with a known or admitted sexual deviate to transact Government business, the hazard that the prestige and authority of a Government position will be used to foster homosexual activity, particularly among the youth, and the use of Government funds and authority in furtherance of conduct offensive both to the mores and the law of our society.

Of course, gays are no longer banned from working in the federal government, and “Don’t Ask, Don’t Tell” is on the outs, whether judicially or politically.  But the brief argues that these gains made towards sexual orientation equality in the United States don’t stand in the way of recognizing gays and lesbians as a suspect class:

The existence of, for example, the Civil Rights Act of 1870, Civil Rights Act of 1964, and Voting Rights Act of 1965—not to mention the Fourteenth Amendment itself—obviously does not negate the suspicious nature of race-based classifications. More to the point, the Supreme Court in Frontiero noted the existence of antidiscrimination legislation enacted by Congress for the benefit of women—including the then-pending Equal Rights Amendment—as a factor cutting in favor of applying heightened scrutiny to sex-based classifications, because it showed that “Congress itself has concluded that classifications based upon sex are inherently invidious.”

Indeed, to show that gay rights have not enjoyed a one-way ratchet towards equality in recent years, the brief offers a litany of legislated from state statutes and constitutional amendments banning gay marriage to the federal Defense of Marriage Act to Congress’s failure to amend the Employment Non-Discrimination Act to include protection against sexual orientation discrimination.  “In light of these repeated legislative and ballot-box defeats,” the brief states,

it is difficult to see how gay people can be seen as “politically powerful” in any way that could possibly make a difference to the equal protection analysis. On the contrary, women and African-Americans have long demonstrated an ability both to obtain substantial protective legislation, and also to elect and appoint representatives to higher office, and yet legal classifications based on sex and race (rightly) remain suspicious and subject to heightened equal protection scrutiny. It is, in short, as indisputable as it is unacceptable that gay people continue to be treated differently by the law, and by voters, from straight men and women.  Such differential treatment is a product of historical animus and unjustified stereotype, and thus warrants the most searching scrutiny when subject to judicial challenge in any context.

The brief goes on to tackle the Ninth Circuit precedent standing in its way.  In the 1980 case of Hatheway v. Secretary of Army, the Ninth Circuit upheld a challenge to the military’s criminalization of sodomy, but along the way declared sexual orientation a quasi-suspect classification, like gender, worthy of intermediate scrutiny.  But this was reversed in 1990 by a case called, High Tech Gays v. Defense Industrial Security Clearance Office. Because the Supreme Court in 1986 ruled in Bowers v. Hardwick that states could criminalize homosexual conduct, the Ninth Circuit in High Tech Gays held that “because homosexual conduct can thus be criminalized, homosexuals cannot constitute a suspect or quasi-suspect class entitled to greater than rational basis review for equal protection purposes.”

The brief then invokes a similar syllogism in support of returning to the Hatheway standard of review:

The central premise underlying High Tech Gays—that sexual orientation cannot constitute a suspect or quasi-suspect classification because homosexual conduct may be criminalized without any constitutional impediment—was squarely rejected in Lawrence v. Texas, which explicitly overruled Bowers.  The Lawrence Court determined that the “State cannot demean [gay people’s] existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention from the government.”

Because the foundation upon which High Tech Gays rested has been rejected by intervening Supreme Court precedent, the case is no longer controlling and must be overruled.  Just as High Tech Gays overruled Hatheway in light of Bowers, this Court should overrule High Tech Gays in light of Lawrence and apply heightened scrutiny to classifications based
on sexual orientation.

Overall, the brief is a powerful and accessible argument for the application of heightened scrutiny to classifications based on sexual orientation.  But the question remains: is heightened scrutiny even necessary, given that Prop 8 failed to meet the rational basis test in Judge Walker’s courtroom?   Here, there is some equivocation.  As Walker wrote:

The trial record shows that strict scrutiny is the appropriate standard of review to apply to legislative classifications based on sexual orientation. All classifications based on sexual orientation appear suspect, as the evidence shows that California would rarely, if ever, have a reason to categorize individuals based on their sexual orientation.  Here, however, strict scrutiny is unnecessary. Proposition 8 fails to survive even rational basis review.

In its previous gay rights cases, the Supreme Court struck down anti-gay laws using only the rational basis test.  Such review clearly empowered Judge Walker to extend that rationale to gay marriage bans, but it is unclear whether the Ninth Circuit or the Supreme Court will be equally disposed towards such an extension.  That uncertainty, it seems, has led the National LGBT Association to advocate for a more secure jurisprudential protection against discriminatory laws.  But given Justice Kennedy’s pivotal fifth vote, trusting in his just-for-gays rational basis review may be a better bet than counting on him to anoint a new suspect class.

As I wrote on the night of Judge Walker’s decision:

[S]exual orientation’s rational basis review, which started as a dodge by Justice Kennedy back in Romer v. Evans and continued by Justice O’Connor in her Lawrence v. Texas concurrence, now seems to be as protective as intermediate and strict scrutiny.  Rational basis review is supposed to be the most forgiving of acts of discrimination–if one gives even a hypothetical justification in defense of a discriminatory law or practice, that law or practice would always be deemed constitutional.  Higher levels of scrutiny were left for “officially” illegitimate identity-based classifications.

But now, the Court, in avoiding the anointment of a new suspect classification for fear of bringing the Clinton/Bush era culture wars into the courtroom, has made its imprimatur irrelevant.  If you enact a law or institute a practice that tells a distinct and traditionally maligned group of Americans that they are unequal citizens, then you are irrational.  Hypothetical justifications are now inadmissible opinions unworthy of deference.  And when this case reaches the Supreme Court, the justices’ reliance on rational basis review will no longer be a peevish dodge or refusal to stratify suffering; it will be an honest reckoning of an America that no longer tolerates intolerance.

It’s also worth considering that heightened scrutiny can be turned against the parties who originally sought it, whereas a uniform rational basis with bite test, as deployed in Romer and Lawrence, does not have the same pitfall.  Even rational and benevolent classifications based on race are subject to strict scrutiny, which has led to the cutting back on affirmative action over the last three decades.  Should sexual orientation classifications be subject to heightened scrutiny, future laws that seek to remedy past discrimination against gays may fall when challenged by straights incidentally burdened by such laws.

In all, however, as long as assignment to levels of scrutiny are meted out by identities and not by actions–which is always, given the Equal Protection Clause’s protection of persons–the National LGBT Association’s brief should be taken very seriously.  After Romer and Lawrence, our Equal Protection Clause jurisprudence with regard to sexual orientation makes no jurisprudential sense.  The brief forcefully states the obvious: heightened scrutiny for sexual orientation classifications is a no-brainer given the indisputable history of legal and social animus against gays in America.  Further, relegating sexual orientation classifications to rational basis also strains doctrinal integrity.  Over time, something must give: either all non-suspect classifications must be subject to similar biting “rational basis” review as laws impacting gays, or laws impacting gays must be subject to the standard forgiving review all non-suspect classifications have long enjoyed.

Whatever the Ninth Circuit decides (if it gets past the standing issue to get to the merits at all), the decision will ultimately be the Supreme Court’s, and thus, Justice Kennedy’s.  I have doubts that his liberal colleagues will once again join him in ducking the standard of review.  If he once again refuses the call to heightened scrutiny, this time to deny a majority over the issue, he will, at best, do so to push forward an idealistic vision of America in which rational basis alone is sufficient to defeat all discriminatory laws.  At worst, he will be committing unprincipled, political cowardice.

My suspicion, however, is that should he vote for a federal right to gay marriage (which is hardly certain), we will find his reluctance to anoint a new suspect class to have evolved.  However happy he might be to retain Romer‘s rational basis with bite, he will be the senior justice in the majority responsible for maintaining such a majority, particularly if he assigns the opinion to himself.  If he seeks anything short of intermediate scrutiny, he may have four justices threatening to splinter the majority and leave him with a lonely concurrence in the judgment, thereby robbing his opinion of its historical force.  Although addressed to the Ninth Circuit, the National LGBT Association’s brief is ultimately directed to this very to this consideration.

The Next Roberts Court: Affirmative Action

Michael Kirkland of UPI wrote yesterday about Fisher v. University of Texas, the affirmative action case currently before the Fifth Circuit.  I noted this case in a link at the top of my last post, and had originally gone on to discuss it, but I decided to keep that post focused on the abortion laws in Nebraska.  Now’s as good a time as any to continue my thoughts on the hot buttons that may reach the Court in the next election cycle, and how the Court may handle them:

Affirmative action in higher education is the remaining hot-button issue on which Kennedy and O’Connor disagreed, but has yet to be tested since Alito joined the Court.  When O’Connor sided with the liberal bloc in determining that the University of Michigan Law School’s race-conscious admissions policy survived strict scrutiny in 2003’s Grutter v. Bollinger, Kennedy dissented.

Although Kennedy is not hostile to affirmative action itself, he believes the Grutter majority watered down the Court’s strict scrutiny standard formulated in Justice Powell’s concurrence in 1977’s Bakke, which approved of a narrowly tailored use of race to achieve the compelling state interest of holistically diverse student bodies in higher education. In other words, Kennedy approved of the use of race, but would give higher-ed affirmative action schemes more searching review than the Grutter majority had demonstrated.  As he concluded in his Grutter dissent:

If the Court abdicates its constitutional duty to give strict scrutiny to the use of race in university admissions, it negates my authority to approve the use of race in pursuit of student diversity. The Constitution cannot confer the right to classify on the basis of race even in this special context absent searching judicial review. For these reasons, though I reiterate my approval of giving appropriate consideration to race in this one context, I must dissent in the present case.

Whether or not Kennedy believes that UT’s consideration of race for applicants beneath its top-10% auto-admit program satisfies his application of strict scrutiny, what is certain is that his application of strict scrutiny will supersede Grutter as precedent.

If Kennedy rejects UT’s policy, he will be the limiting agent on the conservative bloc in the Roberts Court’s first foray into higher-ed affirmative action.  Dependent on Kennedy for the fifth vote to invalidate UT’s race-conscious admissions policy, the conservative bloc could not go the whole Thomas and strike down all consideration of race.  After all, Kennedy, in giving the conservative bloc its fifth vote in 2007’s Parents Involved, refused to sign onto Roberts’s opinion declaring that the “way to stop discrimination on the basis of race is to stop discriminating on the basis of race.”  This maximalist statement was certainly not only meant for public high school admissions schemes.

Nevertheless, Kennedy’s accepting UT’s policy will have the same constitutional effect as his rejecting it.  In any scenario (assigning the majority opinion to himself and strong-arming the liberal bloc into joining him lest he change his vote; assigning the majority opinion to himself and losing his majority, thereby writing for himself in a 4-1-4 decision; assigning the majority opinion to a justice he believes to be simpatico who manages to keep him in the fold; assigning the majority opinion to another justice unwilling to revisit Grutter, compelling Kennedy to write for himself), Kennedy will bury–or, at the very least muddy–Grutter.

The justice to watch, then, will be the Chief.  In Parents Involved, he showed his hand.  He wrote more aggressively than he had written in Wisconsin Right to Life,  in which he refused to follow Kennedy, Scalia, and Thomas towards striking down the same provision of the McCain-Feingold Act that he ultimately voted to put out of its misery this past year in Citizens United.  By making his antipathy to affirmative action so clear in Parents Involved, then, the Chief does not leave himself the same room to backpedal on affirmative action as he had given himself to press onward with campaign finance.

Yet might he want to cast his lot with Kennedy in Fisher?   Roberts’s best case scenario for effectively ending affirmative action is to work with Kennedy to make its scrutiny impossibly restrictive rather than stand on the sidelines calling for affirmative action’s immediate demise.  Roberts can better retain control over his Court’s direction by placing himself in the position to put his own stamp on Kennedy-dominated jurisprudence and placing seeds of doubt within the opinion that at present will be within Kennedy’s boundaries but in the future could be used, should the Chief have a majority, to bring upon affirmative action’s demise.

But I don’t think this will happen.  I take the Chief’s position in Parents Involved at face value.  He will stand firm in his opposition to affirmative action, extending his antagonism to its use in higher education.  In doing so, he will be mindful of his own words in his Citizens United concurrence, where he stated that

if adherence to a precedent actually impedes the stable and orderly adjudication of future cases, its stare decisis effect is also diminished. This can happen in a number of circumstances, such as when the precedent’s validity is so hotly contested that it cannot reliably function as a basis for decision in future cases.

Kennedy had hotly contested the Court’s approval of campaign finance restrictions since he had joined the Court, refusing the entire way to give any weight to disagreeable precedent.  Ultimately, that resulted in the Court’s overturning not only 2003’s McConnell, the most recent facial affirmation of campaign finance rules, but also 1990’s Austin v. Michigan, the case of original sin for Kennedy and his Citizens United majority.

Having provided the justification for such principled intransigence on disagreeable lines of precedent, Roberts might rather dig his heels in and argue that the problem is not simply Grutter, as Kennedy will suggest, but Grutter‘s very root, Bakke.  This position will not prevail with the current court, but if elections work in Roberts’s favor, he will be able to cite his own hot contestation–in which he and Alito will have joined Scalia and Thomas’s decades of protest–in striking down affirmative action well before Justice O’Connor’s suggested 25-year sunset provision in Grutter.

Nebraska Stands Down…For Now

Just a few days ago, it seemed as though in the next few terms the Court would be facing down an unavoidable phalanx of hot-button issues: gay marriage, health care, affirmative action, illegal immigration, and abortion.  Today, however, the phalanx may have lost a horseman: the inevitable big abortion case became, well, evitable–kind of.

Back in April, the Nebraska legislature passed a new law, LB 594, that required pregnant women seeking abortions to be screened for a litany of risk factors to determine whether the women would suffer from mental or physical problems following an abortion.  In July’s Planned Parenthood v. Heineman, Judge Laurie Smith Camp of the U.S. District Court for the District of Nebraska found the bill to create “substantial, likely insurmountable, obstacles in the path of women seeking abortions in Nebraska,” and issued a temporary restraining order in enjoining the legislation from coming into effect.

Today, the AP reports that the Nebraska Attorney General has chosen not to appeal:

“It is evident from the judge’s ruling (to temporarily block the law from taking effect) that LB594 will ultimately be found unconstitutional,” she said. “Losing this case would require Nebraska taxpayers to foot the bill for Planned Parenthood’s legal fee.”

“We will not squander the state’s resources on a case that has very little probability of winning.”

While the district court’s TRO will now become a permanent injunction, a severability clause in LB 594 allows the rest of the legislation to stand.

Nevertheless, there remains separate bill, LB 1103, which provided for the headline-grabbing ban on abortions after 20 weeks of pregnancy–without regard to the woman’s health–on the theory that fetuses can feel pain at that gestational point.  The provision, says the AP, “is scheduled to go into effect on Oct. 15, but a legal challenge is possible from Bellevue abortion doctor LeRoy Carhart.”

Yes, that’s the same Carhart from the partial-birth abortion cases of 2000 and 2007, in which the Court sided first for Carhart in striking down a Nebraska law, and then, with Justice Alito’s replacement of Justice O’Connor, sided against Carhart in upholding a virtually identical federal law.

If Carhart does bring suit, then the hot-button phalanx lives.  The question then will be how the Roberts Court will dispose of these cases if docketed.  Might we see a return of the 2006-07 Court, which stacked the docket with ideological blockbusters and pushed the issues rightward?  Or will we see a continuation of the Court’s past two terms, in which it preserved its political capital for one major gain while finding compromises on issues too explosive to touch.  Political factors may determine which Roberts Court we shall see: will the Court be supported by a Republican-controlled Congress?  Will these cases come during the 2012 Presidential campaign or after the election?

After much talk, including my own, of this term’s rise of the Roberts Court, we may be in for another incarnation sooner than imagined.

CORRECTION: This post originally stated that the two abortion restrictions discussed were part of the same Nebraska bill.  That was incorrect.  The post has been edited accordingly.  Thanks to my professor and mentor, Ken Jost of CQ Researcher, for calling my error to my attention.

Quick Prognostication

Tom Goldstein at SCOTUSblog explains why he believes Acting Solicitor General Neal Katyal will be named the official Solicitor General.  I agree with his analysis, but want to extrapolate a bit more: Katyal will be named SG with the specific purpose of priming him for a Supreme Court seat.

Now here comes my march of the “ifs”:

The said seat will not be open for quite some time.  Justice Ginsburg, likely the next justice to retire, has no plans to do so for at least another five years.  Assuming that Ginsburg remains healthy and that President Obama wins reelection, I also assume that Obama would replace Justice Ginsburg with a woman.

Whether or not Ginsburg proves to be the final retirement under Obama, if Katyal wants to leave the SG’s office before another Court vacancy, then I expect he will be nominated to a federal court of appeal.  Doing so will bolster his position as a future SCOTUS nominee, even if Justice Kagan’s nomination straight from the SG’s office has proven federal judgeships unnecessary for a nominee’s confirmation.

If a fourth vacancy comes up before the 2016 election, then Katyal will be the pick.  By age and political allegiance, Justice Breyer would be the most likely justice to voluntarily leave the bench during the Obama administration, especially if the country’s in a Republican mood leading into 2016.  Doing so would leave room for Katyal, Breyer’s former clerk, to be a reliable successor while also becoming the Court’s first Indian-American justice.

Further, if there is no fourth vacancy under Obama and a Republican becomes president in 2016, Katyal, who is now only 40 years old, will be able to spend eight years building his reputation as a judge and still be young enough for a nomination in 2024.  Then again, by 2024, Clarence Thomas would be the oldest justice at 76–hardly retirement age for justices these days.

So instead, Katyal’s placement as SG with an eye towards SCOTUS relies on the biggest “if” of all: the departure of Justice Scalia or Kennedy a) during a Democratic administration and b) before the retirement of Justice Breyer.  This comes loaded with all sorts of assumptions, the most reasonable being a Democratic presidency beyond 2016–itself a far from a reasonable assumption.  That said, in such an instance, Katyal could be the all-around perfect pick to thwart the full-on thermonuclear confirmation war expected to occur should either Scalia or Kennedy leave their seat–and the Court’s ideological balance–in Democratic hands.

Goldstein’s explanation of Katyal’s credibility from both the left and the right could serve just as well for a SCOTUS nomination as it does for an SG appointment:

Katyal is the Acting Solicitor General, having served as the Principal Deputy Solicitor General throughout the Administration.  In the Clinton Administration, he served as National Security Advisor in the Department of Justice.  He then was a very well known academic (focusing on national security questions) who also practiced before the Court.  He was among a handful of lawyers who formed an advisory body to Barack Obama during the campaign.  Katyal’s work before the Court was very highly regarded, including his victory in Hamdan v. Rumsfeld.  (Another disclosure, I was co-counsel inHamdan, but my role was relatively minor.)  Katyal’s reputation has been sterling, both within the Office of Solicitor General and in his interactions with the broader Department of Justice and the government generally. […]

Katyal has broad support in the Republican legal establishment that should smooth the confirmation process.  My intuition when I decided to write this piece was actually the opposite:  that Katyal’s representation of Hamdan would present an obstacle to his nomination and confirmation.  (Verrilli has somewhat similar issues, given that (like me) in private practice he generally appeared on the left-leaning side of cases.) But it turns out that conservatives have recognized that Katyal’s role in Hamdan was entirely appropriate and that he has an exceptionally strong record on national security questions.  He not only worked on national security issues for the government prior to Hamdan, but as an academic supported the use of national security courts (with Jack Goldsmith), and he subsequently represented the Obama Administration in successfully arguing against both the challenge to rendition in the Arar case and the claim that habeas corpus rights should be extended to detainees held at Bagram Air Force Base (drawing criticism from the left and the New York Times editorial page).  For conservatives rejecting criticism of Katyal’s work in Hamdan, see this piece by the Wall Street Journal editorial page; this piece by Reagan Solicitor General Charles Fried; and these articles quoting Ted Olsonand Richard Epstein.

Barring an actual conservative nominee or an indefinite hold on any nominee until the Republicans take back the White House, Katyal could be the best, most palatable nominee the Republicans could hope for from a Democratic administration.

Of course, a lot happens between election years and Supreme Court vacancies.  Nominations themselves are entirely dependent upon political timing.  But I would be surprised if the White House hasn’t discussed the very scenarios I outline above when talking about Katyal.

Obscenity: One More Shot in February

Thanks to a mistrial at the Ninth Circuit in 2008, there may be one more chance for a nationwide thawing of the Court’s nearly forty-year-old obscenity jurisprudence.

The government’s prosecution of Ira Isaacs in 2008 centered around Isaacs’s distribution of bestial and scatological pornography.  But in June of that year, as the trial was pending, the LA Times reported that Chief Judge Alex Kozinski of the Ninth Circuit, sitting by designation as the district court judge for Isaacs’s case, maintained a porn server of sorts on his computer.  Although the content on Kozinski’s server was a far cry from the extreme nature of Isaacs’s material on trial (NSFW), the public controversy compelled Kozinski to declare a mistrial.

The Isaacs case is now set for a February 2011 trial in the Central District of California.  But the legal landscape for obscenity has changed since 2008 in a way that makes Supreme Court review of this case far more likely than it would have been had no mistrial been declared in the first place.

As Rhett Pardon of XBIZ Newswire reported yesterday:

The introduction of national community standards were put in play after an appeals panel last year found it more logical for obscenity prosecutions.

The 9th U.S. Circuit Court of Appeals ruled in a CAN-SPAM case — U.S. vs. Kilbride, 584 F. 3d 1240(9th Cir. 2009) — that a national community standard to define Internet obscenity is more appropriate than a local one.

Attorney Roger Jon Diamond, Isaacs’ attorney, said that it’s to his advantage to be open to a national community standard using the Miller test, despite the fact that local community standards of the Central District of California would be beneficial.

U.S. prosecutors are advocating a local community standards instruction.

Isaacs was charged with two counts of using a common carrier and interactive computer service for interstate commerce in obscene films.

“Because the videos were from the Central District, you are looking at jurors from the Los Angeles, Orange and Ventura counties who typically are liberally minded,” Diamond told XBIZ.

But Diamond noted that using a national community standards could create a legal maneuver that could benefit Isaacs.

“If the government were to press for a national community standard, they might have a problem finding an expert witness on the matter, because there are none,” he said. “And we could move for a dismissal.”

Some months ago, I wrote about the circuit split created when the Eleventh Circuit refused to follow the Ninth Circuit away from local community standards, and suggested that this split made the issue ripe for Supreme Court review.  No party, however, petitioned the Court over either judgment.  Then, in a case in the D.C. District Court this summer, a deeper split looked possible–the judge had refused to follow Kilbride in a published denial of defendant’s motion to dismiss [693 F.Supp.2d 25]–but the judge ultimately threw the case out before it went to the jury.

Isaacs’s case, then, may be the last Bush-era obscenity prosecution that can lead to a relaxation of the Court’s 1973 Miller test to determine what speech may be classified criminally obscene and therefore left unprotected by the First Amendment.  Although it is not entirely clear whether Kilbride will govern the Isaacs case–Kilbride applied only to Internet obscenity, whereas Isaacs is being prosecuted for Internet and common carrier transmission of obscenity–if the district court decides Kilbride applies to the mails as well as the Internet, then that will be an even stronger blow against Miller than Kilbride itself was.

Still, it’s hard to believe that any jury will not find Isaacs’s movies to be plainly patently offensive and crystal-clear appeals to the prurient interest, whether the jury uses national or local community standards.  To get a sense of the content of the material on trial, just read their titles: “Gang Bang Horse — ‘Pony Sex Game,’” “Mako’s First Time Scat,” “Hollywood Scat Amateurs No. 7.”

In Kilbride, neither the defense nor the prosecution had incentive to appeal: the prosecutors got their conviction (albeit under the federal anti-spam statute rather than anti-obscenity statutes) and the defense successfully chipped away at the Miller test.  In the Isaacs case, however, I see no way Isaacs avoids conviction unless the judge declares obscenity laws altogether unconstitutional or, as in the D.C. trial, throws the case out.  With a conviction comes incentive to appeal.  With an appeal comes a Ninth Circuit judgment affirming, if not broadening, Kilbride‘s deviation from Miller, further reinforcing the circuit split, while upholding Isaacs’s conviction.  And with an affirmation comes a petition for certiorari to the Supreme Court asking for reversal by questioning the ability of any community standards, whether national or local, are sufficient First Amendment safeguards against the criminalization of protected speech.

I can’t imagine the current Court bringing all obscenity within First Amendment protection, let alone letting Isaacs walk.  But I can imagine the Court affirming the use of national standards as perfectly clear enough to gain a conviction in line with contemporary standards patently offended by bestiality or scatological porn.  That way, the Court can have it both ways: a more lenient standard of determining obscenity less susceptible to prosecutors’ unjust forum-shopping, but a standard not so lenient as to provoke headlines that the Court sympathizes with peddlers of uber-extreme pornography.

Television Indecency!

I wrote last night of internet obscenity.  Today, the Second Circuit handed down its opinion in Fox v. FCC, declaring unconstitutional the FCC’s indecency policy of fining network television stations for broadcasting fleeting expletives.

The Second Circuit heard this case on remand from the Supreme Court, which last term upheld the FCC’s regulation as a matter of administrative law by a 5-4 vote.  The Court refused to address the constitutional question of whether the policy violated the First Amendment – the issue the Second Circuit answered in the affirmative today.

Justice Thomas concurred in last year’s conservative majority, expressing his willingness to strike down the regulation on constitutional grounds even though he did not believe it to be impermissibly arbitrary or capricious under the Administrative Procedure Act.  Thomas advocated for overturning precedents that gave less First Amendment protection to broadcast speech than otherwise given to utterances in printed media or cable television.  “Red Lion and Pacifica,” he wrote, “were unconvincing when they were issued, and the passage of time has only increased doubt regarding their continued validity.”

Thomas has made a career out of similar separate opinions calling for breaks from incorrect precedents.  While commentators may debate the long-term influence of Thomas’s lone cry in McDonald this term to overturn over a century of precedent so to exhume the Privileges or Immunities Clause of the Fourteenth Amendment, they may find more immediate satisfaction if FCC v. Fox (captioned Fox v. FCC in today’s Second Circuit opinion) gets back to the Court on the constitutional issue.

Here’s the money quote from Judge Pooler’s opinion, which echoes Thomas’s concurrence:

The Networks argue that the world has changed since Pacifica and the reasons underlying the decision are no longer valid. Indeed, we face a media landscape that would have been almost unrecognizable in 1978. Cable television was still in its infancy. The Internet was a project run out of the Department of Defense with several hundred users. Not only did Youtube, Facebook, and Twitter not exist, but their founders were either still in diapers or not yet conceived. In this environment, broadcast television undoubtedly possessed a “uniquely pervasive presence in the lives of all Americans.” Pacifica, 438 U.S. at 748.

The same cannot be said today. The past thirty years has seen an explosion of media sources, and broadcast television has become only one voice in the chorus. Cable television is almost as pervasive as broadcast – almost 87 percent of households subscribe to a cable or satellite service – and most viewers can alternate between broadcast and non-broadcast channels with a click of their remote control. See In re Annual Assessment of the Status of Competition in the Market for the Delivery of Video Programming, 24 FCC Rcd. 542, at ¶ 8 (2009). The internet, too, has become omnipresent, offering access to everything from viral videos to feature films and, yes, even broadcast television programs. […]

Moreover, technological changes have given parents the ability to decide which programs they will permit their children to watch. […] In short, there now exists a way to block programs that contain indecent speech in a way that was not possible in 1978. In fact, the existence of technology that allowed for household-by-household blocking of “unwanted” cable channels was one of the principle distinctions between cable television and broadcast media drawn by the Supreme Court in Playboy. The Court explained:

The option to block reduces the likelihood, so concerning to the Court in Pacifica, that traditional First Amendment scrutiny would deprive the Government of all authority to address this sort of problem. The corollary, of course, is that targeted blocking enables the Government to support parental authority without affecting the First Amendment interests of speakers and willing listeners – listeners for whom, if the speech is unpopular or indecent, the privacy of their own homes may be the optimal place of receipt.

We can think of no reason why this rationale for applying strict scrutiny in the case of cable television would not apply with equal force to broadcast television in light of the V-chip technology that is now available.

Nevertheless, Pooler refused to defy Supreme Court precedent and instead struck down the regulation as an impermissibly vague restriction on speech:

We agree with the Networks that the indecency policy is impermissibly vague. The first problem arises in the FCC’s determination as to which words or expressions are patently offensive. For instance, while the FCC concluded that “bullshit” in a “NYPD Blue” episode was patently offensive, it concluded that “dick” and “dickhead” were not. Omnibus Order, 21 F.C.C. Rcd 2664, at ¶¶ 127-128. Other expletives such as “pissed off,” up yours,” “kiss my ass,” and “wiping his ass” were also not found to be patently offensive. Id. at ¶ 197. The Commission argues that its three-factor “patently offensive” test gives broadcasters fair notice of what it will find indecent. However, in each of these cases, the Commission’s reasoning consisted of repetition of one or more of the factors without any discussion of how it applied them. Thus, the word “bullshit” is indecent because it is “vulgar, graphic and explicit” while the words “dickhead” was not indecent because it was “not sufficiently vulgar, explicit, or graphic.” This hardly gives broadcasters notice of how the Commission will apply the factors in the future. […]

[T]he absence of reliable guidance in the FCC’s standards chills a vast amount of protected speech dealing with some of the most important and universal themes in art and literature. Sex and the magnetic power of sexual attraction are surely among the most predominant themes in the study of humanity since the Trojan War. The digestive system and excretion are also important areas of human attention. By prohibiting all “patently offensive” references to sex, sexual organs, and excretion without giving adequate guidance as to what “patently offensive” means, the FCC effectively chills speech, because broadcasters have no way of knowing what the FCC will find offensive. To place any discussion of these vast topics at the broadcaster’s peril has the effect of promoting wide self-censorship of valuable material which should be completely protected under the First Amendment.

What seems certain from last year’s vote is that the Supreme Court, should it grant certiorari in this case, will affirm the Second Circuit’s judgment.  If the four liberals–Stevens, Souter, Breyer, and Ginsburg–would have invalidated the policy on administrative law grounds, they would likely strike it down on constitutional grounds as well.  And Thomas would surely provide a fifth vote, given his concurrence.  Because no other member of the Court’s Fox majority joined Thomas’s concurrence, I question whether Roberts, Scalia, or Alito will side with the dissenters on the constitutional question, though I fall back on conventional wisdom in thinking that Kennedy is up for grabs.

The question now is whether the Court would follow Thomas’s suggestion and remove the constitutional distinctions between broadcast and other mediums, thereby submitting all speech restrictions to strict scrutiny.  We don’t know how Sotomayor or Kagan would look towards uprooting precedent, especially one of Kagan’s (assuming she gets confirmed) predecessor’s landmark rulings.  Stevens himself intimated in his Fox dissent that “Justice Thomas and I disagree about the continued wisdom of Pacifica,” implying that he would follow the Second Circuit’s void-for-vagueness ruling rather than overturn himself.

Justice Ginsburg, however, signaled her openness to joining Thomas by citing Justice Brennan’s Pacifica dissent:

The Pacifica decision, however it might fare on reassessment, see ante,at 6 (Thomas, J., concurring), was tightly cabined, and for good reason. In dissent, Justice Brennan observed that the Government should take care before enjoining the broadcast of words or expressions spoken by many “in our land of cultural pluralism.” 438 U. S., at 775. That comment, fitting in the 1970’s, is even more potent today. If the reserved constitutional question reaches this Court, see ante, at 26 (majority opinion), we should be mindful that words unpalatable to some may be “commonplace” for others, “the stuff of everyday conversations.” 438 U. S., at 776 (Brennan, J., dissenting).

Heading Over Now and A Prediction

About to head over to the Court.  Chance of thunderstorms and an already-existing line shall not stop my final campout of the term.

After my obligatory “First” or “Not-so-First” photo up here, I will switch to my Twitter feed to send sporadic stati throughout the night.

Meanwhile, here’s a quick McDonald prediction based upon the oral argument:

• Roberts, Scalia, Kennedy, and Alito for full incorporation Heller‘s federal vision of the Second Amendment to the states via the Substantive Due Process doctrine.  Maybe a few concurrences–Scalia explaining himself for why he’s accepted SDP, distinguishing its use for incorporation purposes as a matter of stare decisis while still hating on it as a tool for finding unenumerated constitutional rights; Kennedy, in response, trumpeting the “liberty” component of the Due Process Clause for protecting and incorporating both enumerated and unenumerated rights.
• Thomas concurring in the judgment for full incorporation via the Privileges or Immunities Clause of the Fourteenth Amendment, arguing that the Court missed its chance to overturn Slaughterhouse and right a longstanding constitutional wrong.
• Stevens concurring in part and dissenting in part, joined by Sotomayor, agreeing with the plurality to incorporate via SDP, but arguing for a more limited scope of incorporation allowing for the states for more breathing room in instituting gun control laws.  Although Stevens was the lead dissenter in Heller, he will provide a final example of his “judicial conservatism” by abiding by stare decisis in recognizing the individual right to keep and bear arms.  In doing so, however, he will work from the “inside” in a futile attempt to limit what he will present as the deleterious societal effects and misguided interpretive history of the Court’s prevailing gun rights jurisprudence.  Sotomayor will sign because she joined the Court after the Heller decision and would therefore feel improper rejecting it outright.
• Breyer, joined by Ginsburg, dissenting, still protesting Heller.

That’s 7-2 for incorporation; 6-3 for incorporation via the Due Process Clause; 5-4 for full incorporation.  Alito hasn’t yet written a majority opinion from the February sitting, so he’s due.  But I wouldn’t be surprised if the Chief or Scalia end up as the author.  Nor would I be surprised if any or all details of my prediction above, except for the 5-4 for full incorporation, will prove completely wrong.

Okay, it’s go time.  If you’re in DC, come visit me–or, better yet, get in line!